The Question of Whether Modus Operandi Is Fair and Effective

On February 15, 1990 the case of the People of the State of New York, Respondent v. Nicky S, Defendant-Appellant as heard in the Supreme Court, Appellate Division, First Department. This sex crime case brings up the question of whether testimony regarding an alleged similar crime may be introduced to show modus operandi and identity when the defendant’s identity is not revealed.

In the Consolazio Case, the complainant, Marilyn Pizzaro Consolazio testified about events that allegedly occurred in April, 1986 when she was staying at the Deauville Hotel in Manhattan. The defendant began talking to her and rode the elevator with her to the seventh floor where their rooms were. Consolazio testified that a few mornings later, when she was taking garbage to the seventh floor disposal area, the defendant came up behind her and pointed a gun at her head. He then pushed her door open and followed her into the room. When she asked him why he was doing this to someone he didn’t know, he said that she had “asked for it because [she] didn’t pay him no mind.”

The defendant had two cameras around his neck, photographed her in her pajamas, and then told her it was time for the nude photos. Consolazio’s young daughters were in the room. When the phone rang and it was her friend, she did not give away the fact that the stranger was in her room with a gun, but she ran to the door, not able to get out. The two went into the bathroom because she did not want to have sex with him in front of her daughters. She said that he then forced her to have sexual intercourse with him and then insisted that she sign a consent statement that permitted him to photograph her for money. She insisted that the defendant did not tell her that he was going to sell the photos, that he was a photographer, or whether or not she was a model.

During this sex crime, Consolazio said that the defendant held the gun the entire time. Before leaving, he told her not to tell anyone, but then said that it didn’t matter because he was going to Florida. After he left, she gave police a description of the defendant, including an eagle pendant on a gold chain.

The defendant testified on his behalf and told a completely different story. He said that he went to Consolazio’s room to take photos of her and that they had sexual relations at the time, raising the question of whether it was consensual or forced. He said that he had helped Consolazio with her grocery cart into the hotel and had spoken with her, during which time he asked her to pose as a model. She agreed and when he went to her room, her daughters and friend Tina were there. He also said that when she learned that the defendant was Columbian, she asked him to get cocaine for her.

The defendant returned to her room in the afternoon when her daughters were sleeping. He contended that the complainant told her that she needed money, so he gave her $50, photographed her, and then had consensual sexual relations with her. She did not pose for photos that afternoon. The next time that he saw her, he brought his camera to photograph her and was told that he could stay for only a few minutes because her jealous boyfriend would be vising soon. After photographing her, he had C sign a consent form and gave her $70 toward the amount that they had agreed on. He promised to pay her the remainder before leaving for Florida. The defendant said that the two then went into the bathroom and had consensual sexual relations. He said that he never saw her after that time and that he did not have a gun at the time.

The complainant was seen at the Cabrini Medical Center after showering, and it was determined that there was the presence of spermatozoa, but it may have been there for up to 72 hours before the test.

In the unrelated case, an application was made requesting a ruling of whether the People would be permitted to introduce evidence of an unrelated attempted rape of Jessica D in Bronx County in June 1986. No final ruling was made at this time, but the attorneys were told not to refer to the Bronx case during opening statements. The defense counsel brought the issue up again, saying that the defendant would concede the identification issue instead of having D testify to another sex crime allegedly committed by the defendant. The court admitted that it may allow evidence of an uncharged crime if the modus operandi is so unique to make the case. The court refused, however, to conduct a Ventimiglia hearing to determine whether the evidence was admissible. When defense applied for a mistrial, this was also denied.

Defense counsel offered to have the defendant testify and admit to being with Consolazio to remove the issue completely. The Court did ultimately allow Diaz to testify because of the similarity of the circumstances of the crime which both involved photographing the women. The jury was told that D’ testimony was allowed only to establish the defendant’s identity. In her testimony, D said that the defendant approached her and talked to her about a modeling agency when she was at a medical clinic. As he told her more about the modeling, she showed interest and told him that she would go to the agency.

The defendant then told her that she would need to bring clothes because the ones there may not fit. She invited him to her apartment to get the clothing. As she was in the bathroom changing into a bathing suit, the defendant followed her into the room with a gun out. He told her to take her clothing off and that he wanted to see her, but would not penetrate her. Diaz then told the defendant that she needed a drink to calm down. When she had the bottle of alcohol in her hands, she threw it in the defendant’s eyes, struggled for the gun, and the defendant fled, leaving his bag with photos there. One of these showed him wearing a gold eagle pendant. He had no camera.

Both the prosecutor and defense agreed that there was no question of the defendant’s identity. The remaining question involved the sexual relations and whether they were a forced sex crime or if they were consensual. The jury was told that if they had any questions concerning the defendant’s identity, they could consider the D testimony, but that they were not to consider her testimony to mean that the defendant had a predisposition to commit sex crimes.

Justice Carro noted in the discussion that the evidence of an uncharged sex crime is inadmissible unless there is a logical link to a specific material issue in the case on trial. He stated that bringing D into the Court to testify did not need to be done because there was no question of the defendant’s identity. The defense offered several times to have the defendant testify that he did have dealings with the complainant, but this did not occur. Also, Justice Carro stated that the Court’s refusing to make an anticipatory ruling was an error that deprived the defendant of the choice of how to proceed in the trial.

He also stated that to establish a modus operandi, there must be similarities in the two cases. He believed that there was very little that was alike in the C and D case. There was not even a camera present in the D case, and the perpetrator did not even attempt to photograph her. He further stated that by allowing D to testify, the chance that the defendant would be convicted was greatly increased. In addition, he believed that the two consecutive terms of 12-1/2 to 25 years in prison on the sex crime conviction was excessive. He said that the sentencing should be reversed and that a new trial should take place.

All concurred with this thought except for Justice Asch who believed that allowing Diaz to testify was the proper step for the court to take. He saw more similarities in the C and D incidents than differences. He believed that the sentencing should stand as it was given to the defendant in this sex crime.

On July 13, 1987, the judgment was reversed and a new trial was called in this matter.